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TMI Blog2005 (5) TMI 129X X X X Extracts X X X X X X X X Extracts X X X X ..... quires to be re-determined by the Tribunal. In the result, the appeals are allowed and the matters are remitted to the Tribunal for deciding the matters in accordance with law." 3.Since the matters were remitted to this Tribunal for deciding in accordance with law, we have heard both the sides on all the issues with special emphasis on the question whether extended period of limitation could be invoked on the basis of which it was submitted before the Supreme Court by the learned Counsel for both the sides that the matters required to be redetermined by the Tribunal. 4.The show cause notice dated 31-3-93 was issued to the appellant on an allegation that during the period between March 1988 to December 1992 the appellant had evaded Central Excise duty to the tune of Rs. 1,18,40,271/- (Rs. 10,30,733/- as Basic Excise duty and Rs. 8,09,538/- as Special Excise duty) on pasta food "put up in unit containers" under the guise of pasta food, "other" in bulk, with the intention to evade payment of appropriate duty. It was alleged that the appellant had knowingly violated the provisions of Rule 9(1) read with 173G(i) and Rule 173F of the Central Excise Rules and had rendered itself liable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted 15-3-94 upheld the objection and refused to set aside the show cause notice reserving the opportunity to the petitioner to submit reply before the appropriate authority. It appears that the matter was carried to the Supreme Court and the Supreme Court by its order dated 28-4-95 in Special Leave to Appeal (Civil) No. 14414/95, holding that there was no ground to interfere with the order of Madhya Pradesh High Court, dismissed the application while granting time for reply to the show cause notice in accordance with the directions of the High Court. Thereafter, the appellant filed a detailed reply dated 31-8-95 to the show cause notice through their Counsel contending that the classification list filed by the appellant carefully described all the goods being manufactured by the appellant and that the classification was duly approved after following the procedure given in Rule 173B. It was stated that it was clearly mentioned stated in the classification list that the appellant would be manufacturing and clearing pasta food in unit containers and packings which are covered under sub-heading 1902.10. It was contended that the expression "unit container" was used with reference to pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1902.10 and chargeable to duty thereunder. 7.The Commissioner specifically dealing with the question of limitation in Paragraph 32 of the impugned order referred to the documentary evidence of visit and verification of stock from time to time conducted by the officer produced by the noticee. He then referred to the letter dated 7-3-98 written by the noticee to the Superintendent Central Excise, Range IV, Bhopal in which the noticee i.e. the present appellant had stated that "As far as the bulk sale is concerned it is clarified that the product after it is manufactured is kept stored in HDPE bags which are not packed and stitched. Moreover, the quantity kept therein is never uniform in weight". This letter dated 7-3-88 was written in response to the enquiry made by the Superintendent by his letter dated 2-2-88 in which the Superintendent had sought detailed clarification from the appellant and on the pattern of sale adopted by the appellant and as to in what condition the appellant was selling these goods as "bulk in loose". The appellant was specifically asked whether the appellant was using any container like gunny bag, cotton bag, polythene bag while selling of these goods. It ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n Heading 1902.10 necessarily implied the sale of pasta food put up in unit containers intended to be ordinarily sold to consumers. Referring to the submission made in Para 5 of the written submissions, he argued that, the expression "put up" in the context in which it appeared must be understood to mean that the packing in which pasta food is packed should be put up on the shelf of a retail store where the consumer has a choice to buy the unit packed and that it did not apply to HDPE bags of 20 Kgs. which can never be put up on the shelf of a retail store. It was submitted that in the classification list the appellant had specifically mentioned pasta sold "bulk in loose". These lists were finally approved. Regularly, gate passes were issued for pasta sold in 20 Kgs. bags and all the information that the goods were sold in 20 Kgs., bags was available with the department. It was submitted that the letter dated 7-3-88 in fact showed the genuineness of the appellant and it did not amount to any deliberate attempt on the part of the appellant to conceal the facts from the department. Moreover, the weight of HDPE bags was not indicated on the bags, since pasta was not to be sold in 20 K ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... de thereunder. (iii) Reference was made to the decision of the Supreme Court in Collector of Central Excise v. Maheshwari Mills Ltd. reported in 2002 (142) E.L.T. 520 (S.C.), in which it was held that the decision of the Supreme Court in Elson Machines Pvt. Ltd. v. Collector of Central Excise - 1988 (38) E.L.T. 571 (S.C.) only laid down that there was no estoppel to seeking a different view from that taken in an approved classification list. 10.The learned Authorized Representative of the department contesting the appeal submitted that the impugned order of the Commissioner was based on the material on record and passed for cogent reasons. He also submitted that the impugned order mentioned the ground for extended period of limitation. He submitted that the evidence collected during the enquiry clearly disclosed that pasta food was weighed and packed in LDPE bags of 10 Kgs. each and two such bags were packed in a HDPE bag designed to contain 20 Kgs. of pasta material. Those 20 Kgs. bags were stitched and were removed from the premises of the appellant for sale. The learned Authorized Representative of the department took us through the evidence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... contentions relied on the following decisions : (i) The decision of the Supreme Court in Commissioner of Central Excise, Ahmedabad v. Srivallabh Glass Works Ltd. - 2003 (153) E.L.T. 494 (S.C.) was cited to point out that in a case where approved classification list showed glass cleared and sold by the assessee was of a particular thickness whereas what was actually cleared and sold was glass of a greater thickness, it was held that a different product in respect of which no classification list had been filed was cleared and sold, and that on the basis of the finding given by the Tribunal the demand was justified. It was held that the principle laid down in Cotspun's case [1999 (113) E.L.T. 353 (S.C.)] that, so far as the classification list subsists the differential duty cannot be claimed on the same product, had no application in such a case. (ii) The decision of this Tribunal in Commissioner of Central Excise, Mumbai-II v. Simba Chips P. Ltd. reported in 1997 (96) E.L.T. 381 (Tribunal), was cited to point out that in the context of expression "unit containers" it was held by the Tribunal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed as removal in "loose" or "bulk in loose", that was sought to be shown by the appellant. Section IV of the Tariff Act deals with prepared foodstuffs, beverages and vinegar, tobacco and manufactured tobacco substitutes, and contains Chapters 16 to 24. The note which is meant for Section IV records at the outset that in this Section, the expression "unit container" means a container whether large or small (for example, tin, can, box, jar, bottle, bag or carton, drum, barrel or cannister) designed to hold a pre-determined quantity or number. The words "large or small" occurring in this Note would include any size of container of the types illustrated in the note which is designed to hold a pre-determined quantity. The expression "pre-determined quantity" would include both large or small pre-determined quantity. "Bag" would be one type of unit container, if it is designed to hold a pre-determined quantity. The expression "designed to hold a pre-determined quantity" would, in the context of a bag would mean a bag that is designed to hold in it a pre-determined quantity. 13.In the present case, there is a reliable evidence on record to show that initially, pasta food pallets were col ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 92 and 19-1-93 that pasta food was kept in the bags weighing 20 Kgs. each and that the particulars were mentioned including those of despatches in the "bin cards". He stated that since pasta food was kept in bags of 20 Kgs. after multiplying the number of bags with that quantity, the total weight was calculated and entered in the RG. 1 register, and, at the time of despatch, the quantity as per delivery order was mentioned. 14.The above documentary evidence as well statements of the responsible employees of the appellant have categorically established in this case that pasta food was packed in HDPE bags in a pre-determined quantity. It was initially weighed and put in LDPE bags in a pre-determined quantity of 10 Kgs. and two such bags were placed in a larger bag i.e. HDPE bag having capacity of holding 20 Kgs. Thus, pasta food, in our opinion, was clearly packed in "unit container" as defined in note under Section IV. The said definition lays emphasis on putting in a pre-determined quantity of the goods in the container which is designed to hold such quantity, whether it is for a large or small quantity. It does not require putting any markings thereon. The capacity of such contai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d in "loose" falling under sub-heading 1902.90, were in fact packed and cleared in "unit containers" and as such, they were excisable goods rightly covered and classifiable under sub-heading 1902.10 chargeable to duty. 15.As regards the contention, that the notice was time barred, we find that there is clear evidence on record which indicates that the appellant misled the officers of the department by representing as if pasta food was being removed in unstitched bags in loose state. In their letter dated 7-3-88 addressed to the Superintendent of Central Excise, the appellant misled him, in response to the enquiry regarding the pattern of sale of pasta food, that, as far as the bulk sale was concerned, the product, after it was manufactured was stored in HDPE bags which were not packed and stitched. It was also stated that the quantity kept in HDPE bags were not uniform in weight. It was further mentioned that generally the customers brought their own bags and the product after weighment was delivered in loose condition without any sort of packing. It was stated that clearance of such loose sale was covered with "nil" duty, in gate form in GP-1. Thus, the appellant clearly led the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and also in the details of sales pattern intimated to the Department. We uphold the finding of the Commissioner that the facts of the case, clearly merited invoking the extended period of limitation. Proviso to Section 11A(1), inter alia, lays down that where any duty of excise has not been levied or paid, by reason of fraud, collusion or any wilful misstatement or suppression of facts, or contravention of the provisions of the Act or of the rules made thereunder with intent to evade payment of duty, by such person, the provisions shall have effect, as if for the words six months, the words "five years" were substituted. The contention that the relevant date would be the date on which the officer had knowledge about such fraud, is not warranted from the definition of the words "relevant date" contained in sub-section (3)(ii)(a) of Section 11A of the Act. We are, therefore, satisfied that the Commissioner has rightly invoked the provisions of the proviso to Section 11A(1) of the Act. 16.For the foregoing reasons, we do not find any substance in any of the contentions raised on behalf of the appellant. Both the appeals are, therefore, dismissed. (Dictated and pronounced in the ope ..... X X X X Extracts X X X X X X X X Extracts X X X X
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